OFFICIAL CODE OF GEORGIA ANNOTATED 2013 Supplement Including Acts ofthe 2013 Regular Session ofthe General Assembly Prepared by The Code Revision Commission The Office ofLegislative Counsel and The Editorial StaffofLexisNexis® Published Under Authority ofthe State of Georgia Volume 14 2011 Edition — Title 16. Crimes and Offenses (Chapters 1 6) IncludingAnnotations to the Georgia Reports and the GeorgiaAppeals Reports Place in Pocket of Corresponding Volume of Main Set LexisNexis® Charlottesville, Virginia Copyright © 2012, 2013 BY The State of Georgia All rights reserved. ISBN 978-0-327-11074-3 (set) ISBN 978-1-4224-9384-7 5013430 (Pub.41805) THIS SUPPLEMENT CONTAINS Statutes: All laws specifically codified by the General Assembly ofthe State of Georgia through the 2013 Regular Session ofthe General Assembly Annotations of Judicial Decisions: Case annotations reflecting decisions posted to LexisNexis® through March 29, 2013. These annotations will appear in the following tradi- tional reporter sources: Georgia Reports; Georgia Appeals Reports; Southeastern Reporter; Supreme Court Reporter; Federal Reporter; Federal Supplement; Federal Rules Decisions; Lawyers' Edition; United States Reports; and Bankruptcy Reporter. Annotations ofAttorney General Opinions: Constructions ofthe Official Code ofGeorgia Annotated, prior Codes ofGeorgia, Georgia Laws, the Constitution ofGeorgia, and the Consti- tution of the United States by the Attorney General of the State of Georgia posted to LexisNexis® through March 29, 2013. Other Annotations: References to: Emory Bankruptcy Developments Journal. Emory International Law Review. Emory Law Journal. Georgia Journal of International and Comparative Law. Georgia Law Review. Georgia State University Law Review. Mercer Law Review. Georgia State Bar Journal. Georgia Journal of Intellectual Property Law. American Jurisprudence, Second Edition. American Jurisprudence, Pleading and Practice. American Jurisprudence, ProofofFacts. American Jurisprudence, Trials. Corpus Juris Secundum. Uniform Laws Annotated. American Law Reports, First through Sixth Series. American Law Reports, Federal. Tables: In Volume 41, a Table Eleven-A comparing provisions of the 1976 Constitution ofGeorgia to the 1983 Constitution ofGeorgia and a Table Eleven-B comparing provisions of the 1983 Constitution of Georgia to the 1976 Constitution of Georgia. An updated version of Table Fifteen which reflects legislation through the 2013 Regular Session ofthe General Assembly. iii Indices: A cumulative replacement index to laws codified in the 2013 supple- ment pamphlets and in the bound volumes ofthe Code. Contacting LexisNexis®: Visit our Website at http://www.lexisnexis.com for an online book- store, technical support, customer service, and other company informa- tion. Ifyou have questions or suggestions concerning the Official Code of Georgia Annotated, please write or call toll free 1-800-833-9844, fax at 1-518-487-3584, or email us at [email protected]. Di- rect written inquiries to: LexisNexis® Attn: Official Code of Georgia Annotated 701 East Water Street Charlottesville, Virginia 22902-5389 IV TITLE 16 CRIMES AND OFFENSES VOLUME 14 Chap. 1. General Provisions, 16-1-1 through 16-1-12. 5. Crimes Against the Person, 16-5-1 through 16-5-110. VOLUME 14A 7. Damage to and Intrusion upon Property, 16-7-1 through 16-7-97. 8. Offenses Involving Theft, 16-8-1 through 16-8-106. 9. Forgery and Fraudulent Practices, 16-9-1 through 16-9-157. 10. Offenses Against Public Administration, 16-10-1 through 16-10-98. 11. Offenses Against Public Order and Safety, 16-11-1 through 16-11-203. VOLUME 14B 12. Offenses Against Public Health and Morals, 16-12-1 through 16-12-176. 13. Controlled Substances, 16-13-1 through 16-13-114. 14. Racketeer Influenced and Corrupt Organizations, 16-14-1 through 16-14-15. 16. Forfeiture of Property Used in Burglary or Armed Robbery, 16-16-1 through 16-16-2. — Law reviews. For note, "Seen But ibility ofRecanted Testimony," see 46 Ga. Not Heard: An Argument for Granting L. Rev. 213 (2011). Evidentiary Hearings to Weigh the Cred- 2013 Supp. T.16, C.l CRIMES AND OFFENSES 16-1-3 CHAPTER 1 GENERAL PROVISIONS Sec. Sec. 16-1-12. Restrictions on contingency fee pointed to represent state in compensation of attorney ap- forfeiture action. 16-1-3. Definitions. JUDICIAL DECISIONS Analysis General Consideration Public Place Prosecution General Consideration range, under O.C.G.A. § 16-10-71, forthe Term "property." — Taxpayers were offense, which constituted a felony under not entitled to a theft loss under 26 O.C.G.A. § 16-1-3. Hogan v. State, 316 Ga. App. 708, 730 S.E.2d 178 (2012). Uin.Sv.aCl.uSe.o§fp1u6b5l(iec)lywittrhadreedspsetcotckt,oaasdaectlhienfet Cited in DeLongv. State, 310 Ga. App. by taking did not occur under O.C.G.A. 518, 714 S.E.2d 98 (2011); Wells v. State, 313 Ga. App. 528, 722 S.E.2d 133 (2012); u§nl1a6w-f8-u2llybetcaakueseoraapcporropporriaattieonandyidprnoop-t State v. Ogilvie, 292 Ga. 6, 734 S.E.2d 50 (2012). erty from the taxpayer, and there was no evidence ofany intention by the corpora- Public Place tion or its executives to deprive the tax- — payer of the property at issue. Although Jail is not a public place. Defen- corporate stock, which was in the taxpay- dant's conviction for affray in violation of er's control after he exercised his stock O.C.G.A. § 16-11-32 was reversed be- options, subsequently declined in value, cause the altercation occurred in the Hall there was no evidence that the corporate County Jail, which was not a "public executives had any specific intent with place"as required forconviction pursuant regard to the taxpayer to take or appro- to O.C.G.A. §§ 16-1-3(15) and 16-6-8(d). priate his stock by devaluation or by any Singletaryv. State, 310 Ga. App. 570, 713 other means; rather, the goal ofthe corpo- S.E.2d 698 (2011). ration, including its later-convicted exec- Prosecution utives, was to increase the value of the stock, includingany stockowned and con- Indictment charging involuntary trolled by the taxpayer. Schroerlucke v. manslau—ghter by simple battery suf- United States, 100 Fed. CI. 584 (Fed. CI. ficient. Indictmentchargingthedefen- 2011). dant with involuntary manslaughter by —Falseswearingconstitutedafelony. the commission of the unlawful act of Defendant was not entitled to relief simple battery in violation of O.C.G.A. from defendant's sentence forfalse swear- §§ 16-5-3(a) and 16-5-23(a) was not void ing, in violation of O.C.G.A. § 21-2-565, because the factual allegations in the in- because the rule oflenity did not apply in dictmentsufficientlydescribedthe offense that there was no uncertainty as to the ofinvoluntary manslaughter in the com- applicable sentence forthe crime, and the mission ofthe unlawful act ofsimple bat- imposition of a five-year sentence was tery.Morrisv. State,310Ga.App. 126, 712 appropriate and within the sentencing S.E.2d 130 (2011). 2013 Supp. 16-1-4 GENERAL PROVISIONS 16-1-6 16-1-4. When conduct constitutes a crime; power of court to punish contempt or enforce orders, civiljudgments, and decrees. JUDICIAL DECISIONS Crimin—al contempt conviction re- by former O.C.G.A. § 24-9-28 (see now versed. Defendant'scriminalcontempt O.C.G.A. § 24-5-507); the state had to conviction was reversed as the trial court grant a valid immunity as broad in scope relied on another court's ex parte immu- as the privilege it replaced and to show nity grant in ordering the defendant to the applicabilityofthat stateimmunityto testify and neither court made a finding thewitness. Inre Long, 276 Ga.App. 306, that the defendant's testimony was "nec- 623 S.E.2d 181 (2005). essary to the public interest" as required 16-1-6. Conviction for lesser included offenses. JUDICIAL DECISIONS Analysis General Consideration Armed Robbery Assault Controlled Substances Kidnapping Murder Rape Child Molestation Other Offenses Involving Children Miscellaneous Crimes General Consideration serious bodilyinjury. Washingtonv. State, 310 Ga. App. 775, 714 S.E.2d 364 (2011). CitedinStatev. Wilson, No.A12A1122, Defendant's conviction for aggravated 2012 Ga.App. LEXIS 793 (Sept. 25, 2012). assault merged into the defendant's con- Armed Robbery viction for attempted armed robbery be- cause the relevant aggravated assault Separate convictions for armed provision did not require proofofany fact robbery and aggravated assault were that was not also required to prove the barred, etc. attempted armed robbery as that offense Defendants'robbery and aggravated as- could have been proved under the indict- sault convictions, under O.C.G.A. §§ 16-5-21 and 16-8-40, merged because, mentinthecase. Garlandv. State, 311 Ga. while aggravated assault did not require App. 7, 714 S.E.2d 707 (2011). taking propertyfrom another, aggravated Assault assault was proved by the same or less than all facts requiredto show robbery, as Aggravated assault merged into ag- theassaultformingthebasisofthe aggra- gravated battery. vated assault with intent to rob, which Defendant's aggravated battery and ag- was pointing a pistol at the victim, was gravated assault convictions merged be- "contained within"the element ofrobbery cause the counts of the indictment were requiring the defendants to have used based on the same conduct ofhitting the force, intimidation, threat or coercion, or victim with a hammer, resulting in seri- placed the victim in fear of immediate ous bodily injury to the victim's hand and 2013 Supp. 16-1-6 CRIMES AND OFFENSES 16-1-6 one ofthe victim's fingers being rendered Controlled Substances useless when the victim placed the vic- Imposition of separate trafficking tim's hands up in an attempt to protect — sentences proper. Trial court did not the victim's head; the aggravated assault was alesserincluded offense ofthe aggra- err under O.C.G.A. §§ 16-1-6(2) and 16-l-7(a)(l) by sentencing the defendant vated battery because the assault re- quired proofofa less serious injury than separately for trafficking in methamphet- the aggravated battery. Thomas v. State, amine, in violation of O.C.G.A. 310 Ga. App. 404, 714 S.E.2d 37 (2011). § 16-13-31, and trafficking in ecstasy, in Aggravated assault did not merge violation of O.C.G.A. § 16-13-31.1, when into aggravated battery. — Crimes did the substance which was found in the not merge legally or factually because defendant'svehicletestedpositiveforboth methamphetamine and ecstasy as there aggravated assault required proof that wasnoevidencethatchemicalcompounds the defendant assaulted the victim using or elements were shared between the qaudireeaddlyprwoeoafpotnh,atagtghreavdaetfeedndbaantttermyalrie-- drugs. Ahmad v. State, 312 Ga. App. 703, ciously caused bodily harm to the victim 719 S.E.2d 563 (2011). by rendering a member of the victim's Kidnapping body useless, and kidnapping required asportation of the victim. The offenses Aggravated assault and kidnap- were distinct with each requiring proofof ping. a fact which the others did not. Reynolds Trial court did not err in declining to v. State, 311 Ga.App. 119, 714 S.E.2d 621 mergekidnappingcountswithaggravated assault counts because the aggravated (2011). Aggravated assault and kidnap- assault involved different conduct from — ping. Crimes did not merge legally or the kidnapping and was completed prior factually because aggravated assault re- thereto and, thus, the same conduct did quired proofthat the defendant assaulted not establish the commission of both of- the victim using a deadly weapon, aggra- fenses; even ifthe kidnapping counts in- vated battery required proofthat the de- volved the same conduct as the aggra- fendantmaliciouslycausedbodilyharmto vated assault, neitherwas includedinthe the victim by rendering a member ofthe other after application of the "required victim's body useless, and kidnapping re- evidence"test.Jonesv. State, 290 Ga. 670, quired asportation of the victim. The of- 725 S.E.2d 236 (2012). fenses were distinct with each requiring Kidnapping and false imprison- ment. proof of a fact which the others did not. Reynolds v. State, 311 Ga. App. 119, 714 Trial court did not err in allowing the S.E.2d 621 (2011). jurytoconsiderthelesserincludedoffense Possession ofdestructive device of- of false imprisonment after granting a fense did not merge with aggravated directed verdict on the kidnapping — assault. Defendant's aggravated as- charges against defendant because false sault and possession of a destructive de- imprisonment was a lesser included of- viceconvictionsdidnotmergebecausethe fense of kidnapping, and the indictment possession offense required that the againstdefendantcontainedalltheessen- weapon function in a certain way and tial elements related to false imprison- have certain dimensions, and the assault ment. Martinezv. State, 318Ga.App. 254, offense required that the victim was con- 735 S.E.2d 785 (2012). scious oftheriskofimmediatelyreceiving Murder a violent injury by use of an offensive weapon. Because each offense required Aggravated assault and malice proofofa fact not required for the other, murder. there was no merger under the required Defendant's conviction for aggravated evidence test. Mason v. State, 312 Ga. assault ofthe victim merged into the con- App. 723, 719 S.E.2d 581 (2011). viction for malice murder of the victim 2013 Supp. 16-1-6 GENERAL PROVISIONS 16-1-6 because there was no evidence that the the victim was under the age ofconsent, victim suffered a non-fatal injury prior to whileaconvictionofraperequiredproofof a deliberate interval in the attack and a force, regardless ofthe victim's age. Stu- fatal injury thereafter; the forensic pa- art v. State, 318 Ga. App. 839, 734 S.E.2d thologist who conducted the autopsy cat- 814 (2012). alogued the victim's wounds as "chop in- Merger of attem—pted rape and ag- juries" that fractured the victim's skull gravated assault. Defendant's convic- and incapacitated the victim and were tion for aggravated assault with intent to likely inflicted with a hatchet, punctures rape under O.C.G.A. § 16-5-21(a)(l) and superficial, deep, and very deep inci- mergedinto the defendant's conviction for sions and stab wounds that were inflicted attempted rape under O.C.G.A. §§ 16-4-1 byknives.Alvelov. State, 290Ga. 609, 724 (criminal attempt) and 16-6-1 (rape) be- S.E.2d 377 (2012). cause the same evidence supported both Indictment charging involuntary convictions and,therefore, the aggravated manslau—ghter by simple battery suf- assault conviction was vacated. Smith v. ficient. Indictmentchargingthedefen- State, 313 Ga. App. 170, 721 S.E.2d 165 dant with involuntary manslaughter by (2011). the commission of the unlawful act of Child Molestation simple battery in violation of O.C.G.A. §§ 16-5-3(a) and 16-5-23(a) was not void Child molestation and aggravated because the factual allegations in the in- sexual battery, etc. dictmentsufficientlydescribedtheoffense Defendant's child molestation convic- ofinvoluntary manslaughter in the com- tion under O.C.G.A. § 16-6-4(a) did not mission ofthe unlawful act ofsimple bat- merge under O.C.G.A. §§ 16-1-6(1) and tery.Morrisv. State,310Ga.App. 126, 712 16-l-7(a) into the defendant's aggravated S.E.2d 130 (2011). sexual battery conviction under O.C.G.A. Aggravated battery merged with § 16-6-22.2 as the child molestation malice murder. charge required proofthat the defendant Evidence of a three-year-old child's in- committed an immoral and indecent act juries and death was sufficient to support with the intent to arouse and satisfy the the defendant's convictionformalice mur- defendant's sexual desires, whereas the der, felony murder, aggravated assault, aggravated sexual battery charge did not, and aggravated battery; however, the de- and the aggravated sexual battery charge fendant's conviction for aggravated bat- requiredproofofpenetration,whereasthe tery based on the fracture of the child's childmolestationchargedidnot. Gastonv. ribs should have been merged into the State, 317 Ga. App. 645, 731 S.E.2d 79 defendant's conviction for murder under (2012). O.C.G.A. § 16-l-6(b). Soilberry v. State, Child mo—lestation and cruelty to 289 Ga. 770, 716 S.E.2d 162 (2011). children. Trial court did not err in Aggravated batte—ry merged with failing to merge the defendant's convic- attempted murder. Trial court erred tions for child molestation, O.C.G.A. in failing to merge the offense of family § 16-6-4(a), and cruelty to children be- violence aggravated battery with at- cause eachcrimerequiredproofofatleast tempted murder, as both convictions were one additional element that the other did establishedbythe same conduct. Hernan- not, and thus, even if the same conduct dez v. State, 317 Ga.App. 845, 733 S.E.2d established the commission ofboth child 30 (2012). molestation and cruelty to children, the Rape two crimes did not merge; cruelty to chil- dren, but not child molestation, requires Statutory rape not less—er included proofthatthevictimwasachildunderthe offense of forcible rape. Trial court age of 18 who was caused cruel or exces- did not err in failing to instruct the jury sive physical or mental pain, O.C.G.A. that statutory rape was a lesser included § 16-5-70(b), andin contrast, childmoles- offense offorcible rape because a convic- tation, but not cruelty to children, re- tion ofstatutory rape required proofthat quires proofthat the victim was under 16 2013 Supp. 16-1-6 CRIMES AND OFFENSES 16-1-7 years of age and that the defendant per- cruel or excessive physical or mental pain formed an immoral or indecent act upon and wilfully failing to provide the child or in the presence of the child for the with the proper care necessary for his or purpose of arousing or satisfying the de- her health, respectively. Staib v. State, fendant's or the child's sexual desires, 309 Ga. App. 785, 711 S.E.2d 362 (2011). O.C.G.A. § 16-6-4(a). Chandler v. State, 309 Ga. App. 611, 710 S.E.2d 826 (2011). Miscellaneous Crimes Other Offenses Involving Children Harassing ph—one calls and aggra- Deprivationofminorandcrueltyto vated stalking. Trial court did not err — children. Trial court did not err in by failing to give the defendant's re- failing to merge the defendant's misde- quested charges on the lesser included meanorconvictions forcontributingtothe offenses ofharassing phone calls and vio- deprivation of a minor, O.C.G.A. lation ofa temporary protective order be- § 16-12-l(b)(3), with the defendant's cor- causethestate'sevidencewas sufficientto responding felony convictions for cruelty establish all ofthe elements ofthe aggra- to children in the second degree, O.C.G.A. vated stalking offenses as indicted; under § 16-5-70(c), pursuant to the "required the evidence, either the defendant was evidence" test, the offenses did not merge guilty of the indicted offenses or the de- as a matter oflaw; the offenses ofcruelty fendant was guilty of no offense whatso- to children in the second degree and con- ever. Brooks v. State, 313 Ga. App. 789, tributing to the deprivation of a minor 723 S.E.2d 29 (2012), cert, denied, No. each have at least one essential element S12C0974, 2012 Ga. LEXIS 1035 (Ga. that the other does not: causing the child 2012). 16-1-7. Multiple prosecutions for same conduct. JUDICIAL DECISIONS Analysis General Consideration Included Crimes 2. CrimesAgainst the Person 3. CrimesAgainst Property 4. Application to Other Crimes Joint Prosecution of Offenses 1. In General 2. CrimesAgainst the Person 4. Application to Other Crimes Severance 3. Sentencing General Consideration Offenses not arising from same transaction. Attachment ofjeopardy. Appellate court found that the court Trial court erred in holding that jeop- was compelled to uphold the trial court's ardy had not attached on the previous denial ofthe defendant's doublejeopardy charges filed againstthe defendantdue to pleainbaronthebasisthatthedefendant a mistrial because the defendant was did not affirmatively show the prosecutor placed in jeopardy when the jury was actually knew of the other crimes when sworn in the first trial. Herrington v. the prosecutor prosecuted the first of- State, 315 Ga. App. 101, 726 S.E.2d 625 fense. Banksv. State,320Ga.App. 98, 739 (2012). S.E.2d 414 (2013). 2013 Supp.